Yesterday (December 28), is a former financial journalist Fu Hua, the first case of alleged bribery in the last day of the appeal period. The Fu Hua was accused on Friday by Chaoyang District, Chaoyang District Detention Center Court to transmit the complaint, filed the case of an appeal, Fu Hua as the first instance I advocate, but also because of the court of first instance against the guilty verdict Fu Hua and Fu Hua consent agreement to counsel status, yesterday sent the petition to the court, file an appeal .
2009 12 17, Beijing Chaoyang District People's Court of Chaoyang District Prosecutor's Office in the prosecution accepted the original Fu Hua, the first financial journalists charged with criminal bribery case in recent years (21 months), and finally to verdict: guilty of accepting bribes to Fu Hua sentenced him to three years imprisonment.
charged for bribery case Fu Hua, Fu Hua, the first instance as a defender, I was as guilty for their defense. As a trained legal education for many years in the university as a teacher for many years and practiced law for many years a lawyer, I strongly believe that the Fu Hua does not constitute bribery.
the reason why the Fu Hua appeal the case, I still appeal as counsel, because: Fu Hua appeal filed its own, as a non-legal person, does not necessarily comprehensive verdict found the error, while he as a lawyer, the error on the first trial was more clearly understood by appeal to the Court of First Instance pointed out the error-round decision to, help maintain the correct implementation of the law; the same time, lawyers defending the right advice is adopted, the defense is successful, have a relationship with the lawyer's interests; Also, according to the Law consequences are borne by the defendant, counsel would most likely choose things , Chaoyang District People's Court (2008) towards the punishment of criminal Chu Zi No. 1177 Hua Fu judgments listed in the defendant's first trial counsel. Phone:.
appellant at December 18, 2009 received, Chaoyang District People's Court (2008 ) towards the Criminal First Section 1177 of criminal judgments. as the Chaoyang District People's Court (2008) towards the punishment of criminal Chu Zi No. 1177 Hua Fu judgments listed in the defendant's counsel, the appellant refuses to accept because of Chaoyang District People's Court accused of taking bribes were made by Fu Hua guilty verdict, according to Fu Hua agreed to the consent of the defendant, an appeal is filed.
request for an appeal, quashing (2008) towards the punishment of criminal Chu Zi No. 1177, Judgement;
2, Fu Hua commuted the defendant not guilty.
grounds of appeal a first instance court found the defendant Fu Hua Li Shen received 3 million commission facts are unclear and insufficient evidence.
verdict in the Airport Group Vice President Zhang Guangtao (male, 46 years old, has been sentenced) and the Group President Zhang Jun Zhang Jun, a result of the work of disgruntled contradictions and, after Zhang Guangtao and when he was the contact the defendant, so defendant as a newspaper reporter in Changchun Longjia International Airport construction project to interview and negative reports, so as to achieve the departments concerned to investigate and deal with the purpose of Zhang. Since then, Zhang Guangtao ordered Li Shen (male, 38 years old , has been sentenced) to continue coverage regarding contact with the defendant, and was passed in June 2005 in Chaoyang District, Wang Jing Shen Li, a restaurant to give the accused the commission 30,000 yuan. accused together with a newspaper reporter leaves plus went on the construction of Changchun Longjia International Airport, interviewed and wrote a Financial Daily in its letter to prosecutors before the written materials, and its written statement submitted to the Court in person, are account: the defendant is in receipt of Zhangguang Tao Li Shen transmitted through the reflection of Longjiapu Airport (now known as Long Jia Airport) construction materials, quality and safety problems exist, and as topics to the newspaper report, newspaper coverage approved only after Wang Jing, Chaoyang District in Beijing, a restaurant approached the Li Shen. The applicant's contact with Lee, is to further understanding of the situation to determine the clues and interviewed interview. In this contact, Lee said the defendant to apply for the inconvenience reception Jilin interview them, forced upon the defendant 5,000 as the cost of the defendant to Changchun interview, the defendant is in decline, but the circumstances acceptable. The 5000 part of the accused has been used in Changchun interviews. defendant also submitted in the first instance court in a taxi in Changchun at the time and other expenses of the bills to prove that the money accepted by Li Shen part of the activities used in the interview, as the newspaper claims the standard is limited (the standard reimbursement of travel expenses at 30 yuan per day), so the defendant has not reimbursed in the unit during an interview with a taxi in Changchun, the full cost of such expenditures.
In addition to the 5,000 yuan, Fu Hua, the defendant also confessed, in the article published in the paper and online, the website for being deleted, Li Shen help do the work in order to re-enable the accused to the Internet, and gave the defendant 1 million. these 1 million the defendant is actually taking into account the need to find someone to help take only acceptable. but the defendants removed the article want to be able to re-site the Internet, to achieve the proper effect of public opinion.
material from the volumes of evidence Look for Lee to re-apply for help to enable the accused to the Internet by 1 million, the defendant is consistently recognized. this fact the prosecution not be prosecuted as a crime, but only charged the defendant of a tea house in Wangjing Li Shen problems receiving money, but money in the teahouse to accept the amount of Li Shen, the prosecution's indictment and the Court's judgments are recognized by 3 million, not the defendant in the first instance before the trial and their written statements written material to the prosecution, as well as their personal written statement submitted to the Court are in the account of the 5000.
the prosecution and the court of first instance, according to the prosecution of the defendant is found, according to Fu Hua Wang Jing tea shop in the acceptance of money by Li Shen Section 3 million of evidence, including the defendant's statements Fu Hua, Office of Yanbian International Travel Co., Ltd. Xiangyu audit reports, and so on. In fact, the evidence can not be proved definitively prove that the defendant in Wang Jing Fu Hua Li Shen teahouses received 3 million given commissions.
3 million for the commission to say, only defendant in custody in Jilin public security organs of the two later statements and so-called Chaoyang District Prosecutor's Office mentioned in the statements made. but in the evidence provided by the Public Prosecution, the defendant was originally made in Jilin transcripts of the contents of the public security organs, and later wrote Procuratorate materials and statements in court were that the defendant did not The restaurant closed in Wangjing Li Shen 3 million. Jilin public security authorities June 16, 2007, two of the accused for questioning. The two interrogation, although police officers transcript remember a bit vague, but it is certain that the defendant Interrogation in the account twice in the teahouse Li Shen received the amount of money, not 3 million, but later in the first instance court with written statements and written materials and the prosecution of individuals before the court a written statement consistent explanation to 5,000 yuan.
the defendant had with June 16, 2007 the two transcripts to make a record of the appellant described the situation: the first interrogation record, the accused confessed that in addition received the Li Shen The two boxes of bear bile powder, the recorded in income as a defendant in the restaurant 15,000 yuan Li Shen. In this regard, the accused when the emphasis is 5,000 yuan, interrogators do not want to change over to the Li Shen defendant accepted the money, a total recorded as 25,000. The second interrogation record, the police officers accused in the restaurant or will receive 5,000 yuan, 15,000 yuan recorded as mm When Li Shen gave me fifteen thousand yuan, element of the transcripts, first in the June 26, 2007 to do the afternoon. In the transcript, the Jilin Province Public Security Department Organized Crime Investigation Team of police asked the defendant Fu Hua and then on account of the defendant The police force's record on the defendant, the police asked the defendant ;, no. I'm handling the public security organ of civilization is very grateful. out of jail from the hospital's medical records after the materials to prove that the ribs have been discounted. For Li Shen received 4 million (of which 3 million in revenue in the tea house) to say, the defendant said, when police officers told the defendant that He confessed with Li Shen and Zhang Guangtao not the same as saying they have say 4 million, has said that 8 million, and asked which of the accused identified, say honest, to give the defendant helpless, after the defendant had the transcripts of the Li Shen's view, in accordance with 1 million and gave the defendant.
defendant Fu Hua statement in the first instance court and the prosecution before the letter written materials, and their personal written statement to the court said, because police officers shall not imply its retracted, in order to no longer be frustrating, the defendant will be collected at the restaurant to say 3 million Li Shen has persevered. The case was transferred to the Beijing Chaoyang District Prosecutor's Office, though back in Jilin Province Public Security Bureau in October 2007 made 25 to lift the bail on the defendant's decision, but only until January 2008 to lift the bail decision in writing to the defendant, the defendant has been thought that bail is still in the stage of Jilin Public Security organs, resulting in 2007 October 25, November 1, 5 November in Chaoyang District Prosecutor's Office made three transcripts are afraid to overthrow the restaurant received a 3 million Li Shen false statements. Later, because prosecutors found hidden secrets, encourage the defendant seeking truth from facts, the defendant by re-consider formally written materials to the Procuratorate, truthful account of the restaurant collected in 5000 by Li Shen problem. Later when the court made a factual account.
Clearly, the defendant Li Shen accepted in the restaurant on the amount of money, of consistency: the public security organs in Jilin, June 26, July 10 made by the record of the account, and the case is transferred, Chaoyang District Prosecutor's Office's Jilin announced the lifting of the bail conditions were not made under the same three notes say, is to receive 30,000 yuan of Li Shen; and Jilin, the defendant was caught the next day on June 16 by the contents of the two transcripts of Chaoyang District Prosecutor prosecution and trial stages of the review is basically the same argument is accepted only 5,000. so inconsistent testimony, the verdict but said, What is excluded under the teahouse to accept the defendant's confession 5,000 yuan Li Shen and confirm their acceptance of the authenticity of Li Shen 3 million of it?
for Public Security Department Organized Crime Investigation Team, police and civil aviation joint in the Public Security Bureau of Jilin Airport April 9, 2007, June 22, October 30 Application for examination of Lee's record, Chaoyang District Prosecutor's Office also provided to the Prosecutor Detention Center in Changchun City, the second examination of the record made by Li Shen. this several transcripts, apply to the defendant on the Fu Hua Li get 4 million (the restaurant to 3 million) of the content only in June 22, 2007 , Oct. 30 transcripts, while Li Shen in December 2006 was detained in January 2007 was arrested, the public security organs before they are made in the April 9 were not mentioned in the transcript sent to the defendant money, how in the June 22 began to explain to the defendant to send 40,000 yuan money? done many times before their record, and its content is it? its June 22, 10 30 May explain under what circumstances is it formed? its about 4 million to the defendant (in the restaurant to the 3 million) of the account of how what people believe to be true? The prosecution accepted, Chaoyang District, Jilin Province Public Security Bureau transferred After the case to the detention center on the Li Changchun, asked the trial transcript, Li Shen has been in the custody of Jilin and the public security organs have the same matter as the Jilin public security officers have the case record, the prosecutor is clearly impossible for Beijing's inconsistent with the previous confession, which prosecutors made their record in Beijing authenticity of the content, is also in doubt.
public prosecution also provides CPA general manager of the Yanbian Shen Li Xiangyu International Travel LLC audit reports, identified by Li Shen 4 million of its use given the defendant's meals, fare and other instruments used to offset the reimbursement in the company. so that the defendant received the money by Li Shen is absurd: If the application for reimbursement Lee meals, fares and other bills reflect the movement of the money is given to the defendant Fu Hua, then the money really come from? it used to be reimbursed for meals, fares and other bills reflect the spending, but also with what used to compensate the reimbursement it?
public prosecutor will Zhangguang Tao's confession as never admitted to Li Shen Fu Hua give money over to the defendant.
public prosecution also provided the relevant court in Jilin Province has been sentenced to Zhangguang Tao and Li Shen's guilty verdict, to prove that the defendant accepted the Li Shen Fu Hua directed by Zhang Guangtao 4 million bribe given. But the appellant noted that the guilty verdict in Li Shen, bribery does not exist; in Zhang Guangtao case ruling, denied the instigation of Li Shen Zhang Guangtao Fu Hua give money to the defendant problems in its public security organs and the prosecution's multiple transcripts, also denied ever ordered Li Shen Fu Hua give money to the defendant, just listen to the Fu Hua Li Shen Yue five or six million, listen to police handling the case, said Lee Application to the Fu Hua 4 million. Zhangguang Tao Shen Li Fu Hua has given how much money the defendant did not know, nor a penny is Zhang Guangtao out. If you do send to the defendant the money Fu Hua, Li Shen is clearly given a free hand to send to the defendant. However, the crime of offering bribes Court has sentenced the Zhangguang Tao, which is obviously wrong. The judgments can not prove that the two Li Shen Zhang Guangtao instructed to give the defendant money problems.
In summary, the Public Prosecution charged the accused to accept Li Shen Fu Hua Zhang Guangtao ordered according to a restaurant in Beijing Wang Jing Fu Hua 3 million to give the defendant the facts, the evidence is clearly insufficient. in the end Li Shen, a tea house to the defendant Wangjing 30000 yuan, or 5,000 yuan, the fact is unclear. the first instance court found the defendant in the restaurant Li Shen 3 million in revenue, not beyond a reasonable doubt.
Second, the first-instance court found that because of Jilin Civil Aviation Vice President and President Zhang Jun Zhang Guangtao there contradictions, disgruntled, and to contact the defendant, so defendant Longjiapu airport construction project to interview and negative reports, so as to achieve the departments concerned to investigate and deal with the purpose of Zhang Jun and Li Shen to the defendant through the commission, the lack of evidence support.
fact, including Zhang Guangtao Jilin civil aviation, including those who already understand the situation reflected in Jilin in the construction of civil airport Longjiapu question has not been caused by relevant departments. Longjiapu airport construction projects the problem does not mean that Zhang's problem, if Longjiapu airport construction project will lead Zhang problems being investigated, and that speaks for itself Zhang a problem, should be investigated, and not because Zhangguang Tao and Zhang Jun of the contradictions and Zhang Guangtao of Zhang's can only speculate, but can not really understand. public prosecutor provided the officer's Moreover, even if Zhang Guangtao is in contradiction with Zhang Jun, and Zhang disgruntled, if the airport construction projects are indeed a problem, the problem is indeed related with the Zhang Jun, the to the media investigation of the problem so that the departments concerned Zhang, is also their legal rights . Zhangguang Tao to the defendant on the court of first instance Baoliao identification purposes, to prove that the defendant reported that Zhang Guangtao rebellion of the problem of non-legitimacy, is completely unjustified.
volume in police officers from the Chaoyang District Prosecutor's Office and investigators on Zhang Guangtao transcripts made by the content of view, Zhang Guangtao been instructed not give money to the defendant Li Shen, Li Shen money to the defendant, nor is Zhang Guangtao provided. Thus, the Zhangguang Tao Li Shen to the defendant through the commission completely out of the question.
Zhang Guangtao is senior to the accused, the accused has been their great respect, the accused can not be Zhangguang Tao of the commission. If Zhangguang Tao Li Shen to the defendant through commissions, which will naturally be told the defendant. In fact, Zhang Guangtao in addition to Jilin Long Jiabao to the defendant rebellion reflects a problem the airport, and let Lee sent an application to the defendant outside the reporting materials, and the article is published in the entire interview process, the accused were not met with Zhang Guangtao. During Zhang Guangtao there is no mention of Lee's and the defendant apply to the commission to do.
In short, the first-instance court found the defendant Zhang Guangtao commissions given by Li Shen, the lack of evidence.
Third, the court of first instance the defendant acts characterization is wrong, sentenced the accused guilty of accepting bribes for error of law.
under the criminal law and criminal law the basic theory, taking bribes, is the national staff, the use of his office to ask for other people's property or illegally accepting other people's property and to benefit other people's behavior (Penal Code section 385).
the subject of this crime is the national staff, that is engaged in official state organs (ie, in the organization, supervision and management of public affairs) of the staff. This crime is an intentional crime, the perpetrator subjectively by using his position to facilitate the need to seek benefits for others in exchange for others to give their property intentionally, that is subjective is to engage in need to use his office to solicit or accept other people's property illegally, and to seek benefits for others, namely, the Zhang Guangtao only the authenticity of the problem and the corresponding issue is newsworthy, without the need to care about its purpose and motives, and that the defendant can not clearly understand the real purpose of Zhang Guangtao rebellion and motivation. In this case, the defendant transmitted by Li Shen Zhang Guangtao received reports of material, that the great news value, which leads to the important topics as the newspaper report; newspaper agreed to the decision coverage, and sent reporters at a press card, press card with no leaf plus the the defendant an interview on the topic itself means recognition of news value. defendant is coverage in the newspaper has decided to airport construction projects Longjiapu issues before the tea in the Wangjing contact with Li Shen, Li Shen property accepted . Although the defendant received the property of Li Shen, but did not ask the defendant had property in advance and did not require property express or implied, simply refuse to accept the property, but the case received. the defendant to report on the Long Jiabao topics of the airport, is entirely based on news value judgments and choices is to public opinion, public interest, and not for who to as Airport coverage, the newspaper is simply to complete the task of news gathering and reporting arrangements, the public opinion, with whom the same is not to (In fact, each tip lines to the news media who may have their own purpose and motivation), but the defendant newspaper to the newspaper report topics and issues decisions on topics of coverage, is considered the public interest but not for an individual interests. Therefore, the defendant's conduct does not meet the subjective element of the crime of bribery.
objectively, the defendant Longjiapu airport construction engineering reports, is completely true. Although the public prosecution Airport Construction Headquarters submitted proof of completion and acceptance of materials and materials to try to prove the defendant's inaccuracy, but the defendant reported earlier, the airport in the after completion and acceptance, final acceptance of the problem does not exist, does not mean that the defendant reported that the airport construction projects when there is no problem. The airport construction headquarters of the evidence, due to the airport headquarters reports about the object itself, the evidence of its authenticity and probative force are not credible. In fact, by the defendant who reported that the Airport problems caused relevant departments. In the later completion of acceptance, the report also referred to the defendant's report reflected the reports confirmed the authenticity of the defendant. If not the defendant's report, the construction unit for rectification and then the airport, the airport is very smooth through the completion and acceptance is difficult to say. Thus, while the defendant is indeed in sight of the tea collected 5,000 yuan Li Shen property, but the defendant's report on safeguarding the public interest objective, and not for personal gain, in fact, give the defendant property to the defendant, Li Shen and Zhang Guangtao not and can not tip lines of the reports of the defendant gets what benefits. Therefore, the defendant's conduct does not meet the objective element of bribery.
needs to be noted that in this case, the defendants did not meet the qualification of the crime of bribery.
from the criminal law on bribery provisions of the internal logic, the main body of the crime of bribery as a criminal act, need to be staff of state organs, that is engaged in official state organs, and the need for power. Power is relative or specific subject matter with the force, domination and decisions. That is, as the main crime of bribery need within their scope of responsibility or specific issues with relative force, domination and the ability of the decision.
In this case, the defendant employed as the First Financial Daily reporters, and First Financial Daily, the labor contract is signed. between the defendant and the newspaper is an employment relationship, the defendant need to complete a certain number of and quality of the dispatch task, the newspaper paid to obtain the appropriate mandate and remuneration of labor. In this labor relations, the First Financial Daily, what authority did not give the defendant, the defendant can not force anything, can not dictate what and decide what just use their collection of information and the ability to write articles, to complete the dispatch task. the defendant to the interview and the author of Changchun First Financial Daily is published by itself did not even press cards. Changchun interview and write it to the article, the use of the full collection of information is their own personal ability and writing ability, not the media or the powers of an organization. As a reporter, the accused is charged with specific responsibilities unlike national staff, as a statutory system of organization or a certain set responsibilities, and enjoy the power of the corresponding duties, the performance of the duties and exercise of the power have a specific legal or system requirements that do not follow the corresponding provisions of the law or the system does not conscientiously perform their duties, may constitute dereliction of duty or dereliction of duty, illegal or criminal acts. and press on any issue, reported or not reported belong to the scope of their freedom, there is no dereliction of duty, illegal or criminal problems. At the same time, the defendant conducted the interview as a journalist, reporting activities, the sense of not belonging to the Criminal Code No penalties sense Briber should should belong to moral, legal, should go to the law court of first instance the defendant as crimes subject areas will be entirely ethical issues be investigated as a crime is entirely wrong. verdict to the defendant in the report signed by a reported that right In fact, according to international human rights instruments, everyone has to seek, receive and impart information freely, interviews, press coverage is not the privilege. The first instance court found that public power, the performance associated with the terms of public affairs consistent with law, even clearly contrary to common sense! mm opinion is that public comments, the main body of public opinion is the people, public opinion is public scrutiny, not the news media monitoring, media monitoring in real terms is the public through the media, public opinion of speech in order to achieve , public opinion is a civil rights areas, and non-public power, much less national news media to give opinion to the whole society of the public authority. public power and public opinion is completely opposite!
actually submitted in the first instance the appellant the entry into force of a court case ruled that the book, Shanxi Luliang City Intermediate People's Court to democracy and rule of law are clearly identifiable as a newspaper reporter station of Guangdong (appointment) of the King Jianfeng Qualification. Jilin civil case launched by the results of public opinion against retaliation, the court of first instance the defendant's conviction on the same power to condone and encourage the public to retaliate against reporters.
critical reports accused Jilin Civil Aviation Airport Construction Longjiapu problems , and in this case, the Public Prosecution as evidence of many of the accused before the court Jilin Provincial Public Security Department investigators have been building the airport because Longjia Jilin Provincial Government of the awards received, Changchun City Procuratorate is Longjiapu airport to build flats, police in Jilin Civil Aviation under the Jilin directly to the Civil Aviation Authority. Public Security Bureau of Jilin Airport by the Civil Aviation launched a criminal prosecution against the defendant, the defendant is undoubtedly a kind of retaliation is illegal. Beijing Chaoyang District Prosecutor on the defendant's prosecution, it is the continuation of such unlawful acts.
From the case material in the volume of view, Li Shen June 22, 2007 only to the Jilin public security organs, The public security authorities of Jilin June 15 on suspicion of companies, business people accused of bribery on the implementation of the detention, Fu Hua, Fu Hua, the public security authorities detained the defendant, apparently there is no evidence that the property of their acceptance of Li Shen! Jilin Public Security organs Fu Hua's detention of the defendant, the defendant is clearly the need for revenge, the first arrest people and then engage in personnel in case of lack of jurisdiction, not by Beijing local public security organs, about the accused arrested from Beijing to Jilin regulation is entirely the defendant's retaliation. Jilin public security organs of the defendant's so-called jurisdiction to the so-called Beijing prosecutors Beijing public security authorities released on bail to return to the hospital after the examination by the results: the right ninth rib fractures; the right pectoral muscle and soft tissue contusion; lumbar contusion. This is enough to prove that the accused public security authorities in Jilin severely torture; defendant people in the restaurant on Lee received 3 million applications is subject to false statements made under torture in the case. the defendant's statements in the trial and wrote Procuratorate, the court also showed that the material, Jilin Zhang Jun, president of Civil Aviation After the defendant was released on bail, but also threats, intimidation of the accused, the accused came out so do not trouble; defendant also told the defendant newspaper service between the two units have reached an understanding that the defendant should not toss.
Court of First Instance disregarded the defendant because public opinion was against retaliation, the verdict the defendant guilty. This is actually a public authority to retaliate against the connivance and encouragement of public opinion.
In summary, the appellant that the defendant's conduct did not constitute the crime of bribery, requesting the court shall revoke the first instance, Chaoyang District People's Court ruling, commuted the defendant not guilty.
Sincerely
Beijing Second Intermediate People's Court
appellant: Beijing law firm asked the day The lawyer Zhou Ze
No comments:
Post a Comment